Opinion
2012-05-3
In re PEDRO A., Petitioner–Respondent, v. SUSAN M., Respondent–Appellant.
Leslie S. Lowenstein, Woodmere, for appellant. Randall S. Carmel, Syosset, for respondent.
Leslie S. Lowenstein, Woodmere, for appellant. Randall S. Carmel, Syosset, for respondent.
Karen P. Simmons, The Children's Law Center, Brooklyn (Janet Neustaetter of counsel), attorney for the child.
Appeal from order, Family Court, Bronx County (Myrna Martinez–Perez, J.), entered on or about April 25, 2011, which granted petitioner father final custody of the subject child, and provided respondent mother with visitation, unanimously dismissed, without costs.
The challenged order was rendered academic when it was superseded by a subsequent order of the same court and Judge, entered on or about May 24, 2011 ( see Matter of Breeyanna S., 45 A.D.3d 498, 847 N.Y.S.2d 515 [2007], lv. denied 10 N.Y.3d 706, 857 N.Y.S.2d 39, 886 N.E.2d 804 [2008]; Matter of Jabarry W., 24 A.D.3d 218, 219, 804 N.Y.S.2d 922 [2005], lv. denied 6 N.Y.3d 711, 814 N.Y.S.2d 600, 847 N.E.2d 1173 [2006] ), from which no appeal was taken. Moreover, the record is clear that the mother defaulted on the date set for the fact-finding hearing. No appeal lies from an order entered on default ( see Matter of Anita L. v. Damon N., 54 A.D.3d 630, 631, 864 N.Y.S.2d 23 [2008]; Matter of Miguel R. v. Wilda C., 74 A.D.3d 631, 902 N.Y.S.2d 355 [2010] ).
Were we to consider the mother's appeal, we would find that the court had sufficient information to support its determination that it was in the best interests of the child for the child to remain in the custody of the father, with visitation by the mother ( see Matter of Reynaldo M. v. Violet F., 88 A.D.3d 531, 931 N.Y.S.2d 213 [2011] ).